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  • Dolores Sinistaj

California Passes Mandatory Sentencing for Rape

Updated: Oct 24, 2023

While 2016 was a year filled with many newsworthy stories in the criminal law world, the story of Stanford student, Brock Turner, captured the attention and concern of many. The events that unfolded from this Stanford rape case were unexpected in some ways, leading California to toughen up its laws against rape. Because of the Brock Turner case, California lawmakers approved a mandatory sentencing for rape cases, a bold move they had not done before. While some regard this unanimously passed measure as beneficial for the state, others feel that it was the wrong response for the criminal justice system.

The California Assembly began working on this piece of legislation shortly after the conclusion of Turner’s case. Turner, at the time of his arrest, was a 19-year-old freshman at Stanford University, enrolled on a swimming scholarship. On January 18, 2015 he was spotted behind a dumpster on top of an unconscious woman. It was later discovered that Turner sexually assaulted the woman while she was unconscious, suffering significant trauma. Ultimately, Turner was convicted by a unanimous jury. However, the presiding judge, Judge Persky, only sentenced him to six months in county jail. It was the minuscule length of jail time that catalyzed many Americans to take action and voice their disapproval. In comparison, the average sentence in California for a first time sexual assault offender ranged from 3-8 years.

Not only were everyday citizens, women groups, and Stanford student organizations disappointed with the way the case was handled, but California legislators also shared their frustrations. “Turner’s sentence brought a firestorm of protests.” In a 66-0 unanimous vote, the California Assembly passed a bill that will impose a mandatory prison sentence when physical force is used in the course of a rape. This new law will also mandate a prison term whenever the victim is intoxicated or unconscious and the perpetrator does not have to use force. Governor Jerry Brown signed the legislation in late September, enabling California to take a step in the right direction in regards to combating and punishing sexual assault. Governor Brown himself said that he “generally opposed to adding more mandatory minimum sentences,” but he said that “nevertheless, I am signing AB 2888, because I believe it brings a measure of parity to sentencing for criminal acts that are substantially similar.”

Prior to Governor Brown signing the legislation, citizens organized a campaign to recall Judge Perksy with “more than 1 million signatures on a petition calling for his removal.” Judges in California may be removed in one of three ways. The first way is that judges may be impeached by the assembly and then convicted by two thirds of the senate. The second way is by simply being subject to recall election, and the third is if the commission on judicial performance investigates complaints of judicial misconduct and incapacity. The commission’s decisions will be subject to review by the Supreme Court, and allow for a judge to either be privately admonished, suspended, censured, retired, or removed. Attacking judges in the court of public opinion comes with the implication of politicizing judicial selection even more.

In addition to Assembly Bill 2888, which will prohibit judges from giving convicted offenders probation when they sexually assault someone who is unconscious or intoxicated, Assembly Bill 701 was also created. AB 701 expands the legal definition of rape to include all forms of nonconsensual assault. Rape had previously been defined as only an act of sexual intercourse under force, duress, or lack of consent. “Other types of sexual assault, like penetration by a foreign object, were categorized as separate offenses,” until now.

Under the old law, those who had been convicted of rape using additional physical force had to serve prison time. On the other hand, offenders like Turner, who had been convicted of sexually assaulting an unconscious or incapable person unable to give consent because of their mental or physical state, could receive a lesser sentence based on the judge’s discretion. This is was what we saw happen at the end of the Turner case. Because of all the uproar, the Judge presiding over Turner’s case “requested a temporary transfer to a civil court, where he will not hear criminal cases.”

However, not everyone is on board with this mandatory minimum sentencing for rape. As Alexandra Brodsky, the Feministing Editor and Know Your IX co-founder, and her Yale Law School classmate, Claire Simonich, said, “Although mandatory minimums were meant to reduce disparities, in practice they hurt populations some reformers sought to protect.” Additionally, because the mandatory sentences shift the power from judges to prosecutors, it enables them to "effectively choose the sentence which of a range of eligible charges to bring against a defendant.” As Brodsky and Simonich concluded, “While defendants can appeal judges’ opinions, decisions made by prosecutors are nearly impossible to challenge.” However, this would also allow for more prosecutorial discretion. Prosecutors are more likely to bring specific charges if they know it will carry a mandatory sentence, which could lead to the abuse of prosecutorial discretion.

The question remains, whether or not mandatory minimum sentencing statutes have been effective in achieving the goals of the criminal justice system. For some, the goal of the criminal justice system is to serve harsher punishments to engage in both general and specific deterrence. For others, the goal is retribution and to see that a punishment is fitting the crime committed, which for many was not the case with Brock Turner. “There is substantial evidence that the mandatory minimums result every year in the lengthy incarceration of thousands of low-level offenders who could be effectively sentenced to shorter periods of time.” Mandatory sentences therefore cost the American economy several hundred million dollars. Additionally, mandatory minimums do not narrowly target violent criminals or major drug traffickers all the time. Both of which may be perpetuating the problem of mass incarceration, a worry for many. “The Statutes have unintended consequences that compromise the basic fairness and integrity of the federal criminal justice system.” Lastly, the same benefits we yield from mandatory minimums could be achieved “at a lower cost and with fewer negative side effects through application of Federal Sentencing Guidelines.”

The state of California will have to see how the passage of this law will affect the criminal justice system within the state, but for now, Californians feel more at ease with these stricter punishments in place. Perhaps it is because the Brock Turner case is still fresh, or because of the current climate and rhetoric regarding sexual assault is gaining social and political attention. For the legal community, mandatory minimum sentences have widespread implications that attorneys should be aware of and ready to tackle, such as a more limited judicial discretionary power and a potential increase in prosecutorial abuse.


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